Citation Nr: 1513763
Decision Date: 03/31/15 Archive Date: 04/03/15
DOCKET NO. 13-06 741 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri
THE ISSUE
Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to asbestos exposure in service.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the United States
ATTORNEY FOR THE BOARD
J. Turner, Associate Counsel
INTRODUCTION
The Veteran served on active duty from March 1973 to March 1975 (honorable), June 1977 to September 1986 (honorable), and September 1986 to April 1987 (other than honorable).
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.
The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Veterans Benefits Management System" and on the "Virtual VA" system to ensure a total review of the evidence.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.
REMAND
The Veteran contends that he currently suffers from COPD, which he asserts was incurred as a result of asbestos exposure in service. Specifically, in his March 2011 claim, the Veteran stated he was exposed to asbestos while serving on U.S. naval ships, which he described as "loaded with asbestos." He noted the ships were filled with pipes that had asbestos wrappings on them, and reported the asbestos would "flake" down into the air and he would have to sweep the dust off his bunk. He also reported that when the ships fired the guns, asbestos would "fly all over the place." More recently, the Veteran has suggested his history of smoking cigarettes coupled with asbestos exposure led to his respiratory illness.
The VBA Manual guidelines 'direct that the raters develop the record; ascertain whether there is evidence of exposure before, during, or after service; and determine whether the disease is related to the putative exposure.' Dyment v. West, 13 Vet.App. 141 (1999); see also Nolen v. West, 12 Vet.App. 347 (1999); VAOGCPREC 4-2000. Review of the claims file leads the Board to conclude that the required development has not been accomplished in this case. There does not appear to be any development of evidence of exposure before, during, or after service, nor is there an adequate VA examination report with etiology opinion. Such additional development is necessary before the Board may properly proceed with appellate review.
A November 1982 reenlistment examination performed in service indicates that a chest x-ray was performed, showing results of early infiltrate, old pleural scarring in the right upper lobe.
In October 2010, the Veteran underwent a contract VA examination. The examiner noted the diagnosis of COPD, and reported x-ray results showing interstitial change in the right hilum which was slightly prominent and nodular density in the left mid lung. The examiner added that a pulmonary nodule in the left upper lung could also be seen as a result of asbestos. In conclusion, the examiner determined the diagnosed COPD was at least as likely as not incurred in or caused by asbestos exposure, stating asbestos exposure can be a factor in COPD development.
In a January 2012 VA medical opinion, a VA physician reviewed the claims file and noted there was nothing in the evidence to suggest a diagnosis of asbestosis. The examiner also noted the Veteran had a history of smoking 1 pack of cigarettes per day, and reasoned that the Veteran likely started smoking in his twenties, as "smokers generally do not start smoking in their 30s", resulting in a 30 pack a year smoking history, "in all likelihood." Based on the medical evidence, including the lack evidence to suggest asbestosis, the examiner determined that it was more likely than not that the Veteran's COPD was due to his significant smoking history.
The evidence of record does not reflect that the RO has contacted the Navy Medical Liaison Office to determine whether the Veteran may have been exposed to asbestos while assigned to the U.S.S. Knox, U.S.S. Mississinewa or the U.S.S. Saratoga. The evidence similarly does not show the RO undertook any development to determine whether the Veteran was exposed to asbestos before or after service. Such development must be completed prior to appellate review. Additionally, the Board finds that an addendum opinion should be obtained that specifically addresses the November 1982 chest x-ray findings.
Accordingly, the case is REMANDED for the following action:
1. The RO/AMC should take appropriate action to develop evidence of asbestos exposure before, during, and after the Veteran's service. This development should conform to the DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988), as well as VA Adjudication Procedure Manual M21-1, Part III, para 5.13 and M21-1, Part VI, para. 7.21.
2. The RO/AMC should contact the Navy Medical Liaison Office and request verification of exposure of the Veteran to asbestos while assigned to the U.S.S. Knox from 1978 to 1979; the U.S.S. Mississinewa from 1973 to 1975; the U.S.S. Shenandoah from 1983 to 1984; or the U.S.S. Saratoga in 1985.
3. Obtain an addendum opinion from the examiner who provided the January 2012 VA opinion (or another appropriate examiner if unavailable). The claims file [i.e. both the paper claims file and any relevant medical records contained in the electronic file(s)] must be provided to and reviewed by the examiner.
A November 1982 reenlistment examination showed chest x-ray results of early infiltrate, old pleural scarring in the right upper lobe. In light of the foregoing, the examiner is again asked (i) whether it is at least as likely as not (a 50 percent or higher degree of probability) that the Veteran's COPD is due to asbestos exposure, and if yes, (ii) whether it is at least as likely as not (a 50 percent or higher degree of probability) that the Veteran's COPD is due to pre-service, in-service, OR post-service asbestos exposure. In making this determination, the examiner is asked to discuss the November 1982 reenlistment examination chest x-ray findings. The rationale for the examiner's opinion should be explained in detail.
4. Then, the RO/AMC should readjudicate the claim. If the benefit sought is not granted, the appellant and his representative should be furnished a SSOC and afforded a reasonable opportunity to respond before the record is returned to the Board for further review.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
_________________________________________________
TANYA SMITH
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).